Historical Test for the Religion Clauses of the 1st Amendment

8/6/2019 Historical Test for the Religion Clauses of the 1st Amendment

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The Historical TestThe Judicial Test Emerging from Colonial Americas Political and Religious History Applicable

to Constitutional Challenges Based on the Religion Clauses of the FirstAmendment

Tayra de la Caridad Antolick 2000, 2011

Separation of Church and State is a matter of JurisdictionNot a matter of Conviction


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ii

Table of Contents

Introduction.................................................................................................................................. 1-2

Purpose of the Religion Clauses of the First Amendment........................................................... 2-3

Ascertaining Original Intent ........................................................................................................ 3-9

Colonial Underpinnings of the Religion Clauses....................................................................... 9-19

Legal, Governmental, and Biographical Evidence .................................................................. 19-27

The Error of Deism.................................................................................................................. 27-33

Jefferson and the Wall of Separation....................................................................................... 33-36

Judicial Vacillation .................................................................................................................. 37-42

Conclusion ............................................................................................................................... 42-44

Bibliography ............................................................................................................................ 45-49


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Introduction

As early as the 1940s, the Supreme Court of the United States has been formulatingstandards or tests to determine the constitutionality of a law when challenged on the First

Amendments religious clauses grounds, such as the Ballard

1

, Sherbert

2

, Seeger

3

, Lemon

4

,Yoder5, and Smith6 tests. However, these standards seem to ignore the fundamental

contentions that brought the First Amendment into existence and the original intent of the

founding fathers of this country. The Historical Test, which takes into account these contentions

as its sole criteria, would remain true to the original intent and would destroy the wall of

separation that Thomas Jefferson never foresaw would be used to abolish Christian influenceand expression in the political, legal, and governmental arenas.

The current use of the wall of separation between church and state as a legal argument

for the removal of the expression of American Judeo-Christian Protestant religious culture from

governmental institutions and the prohibition of the free exercise of individuals working withinthem goes contrary not only to the original intent of the founders and the framers of the

Constitution but also to the religious, political, and legal history and traditions upon which theUnited States of America was established. Courts, county school boards, teachers, and

1 United States v. Ballard, 322 U.S. 78 (1944): The trial Court instructed the jury that they could not

consider the truth of the belief but rather its sincerity. Trying the truth or falsity of a belief is entering in a forbidden

domain. There is, however, the conscientious objection exemption. According to the Universal Military Training

and Service Act of 1940, religious training and belief means an individuals belief in a relation to a Supreme Being

involving duties superior to those arising by any human relation but [not including] essentially political,

sociological, or philosophical views or a merely personal moral code. This case is generally used to define religion.2 Sherbert v. Verner 374 U.S. 398 (1963): Secular legislative purpose is not enough: the state must show 1)

the law is protecting an important, compelling government interest and 2) In the least restrictive manner possible

[the Least Restrictive Manner Standard]3 Unites States v. Seeger, 380 U.S. 163 (1965): That Seeger did not answer whether he believed in God

did not disqualify him from receiving military exemption. Congress used the Supreme Being to embrace all

religions and to exclude essentially political, sociological, [and] philosophical views. The test of belief in relation

to a Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its

possessor parallel tothe orthodox belief in God. Conscientious objectors can obtain exemption from military

service when the objection is a moral and ethical belief sincerely held, elevating it to religious belief and training

status. Here the Court moved away from the necessity for the belief in a Supreme Being or God as a requisite for 1st

Amendment protection4 Lemon v. Kurtzman, 403 U.S. 602 (1971).The statute challenged on constitutional grounds must 1) a

secular legislative purpose, 2) must not foster an excessive government entanglement with religion, and 3) its

principal or primary effect must be one that neither advances nor inhibits religion.5 Wisconsin v. Yoder, 406 U.S. 205 (1972): The way of life and beliefs are inseparable and interdependent.

A way of life must be rooted on religious belief. The belief is not merely a matter of personal preference, but sharedby an organized group, and intimately related to daily living.

6 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990): The

Hybrid Rule. The only decisions in which the Court held that the 1st Amendment bars application of a neutral,

generally applicable law to religiously-motivated action have involved the Free Exercise Clause with other

constitutional protections. If governmental compelling interest is to be applied at all, it should then be applied across

the board, which would lead to anarchy. If prohibiting the exercise of religion is merely the incidental effect of a

generally applicable and otherwise valid provision, the 1st Amendment has not been offended. That minority

religions will be placed at a relative disadvantage because of the democratic process is an unavoidable consequence.

This is the most common standard used.

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individuals, unwittingly devoid of the knowledge of the substantial role religion7

(primarilyProtestant Christianity) played in the birth and formation of the United States are taking the

Establishment and Free Exercise clauses of the First Amendment beyond its scope. They are

using it as a weapon against the free exercise of religion and abusing it by extending itsinterpretation beyond separating the jurisdiction of the institutions of church and government. If

the historical reasons or contentions for the separation of church and state were to be applied tothe Establishment Clause as they were argued at the first constitutional convention inPhiladelphia, it can be deduced that neither Congress nor any state legislature, after the

incorporation of the First Amendment to the states via the Fourteenth Amendment, has ever

violated the clause, since they have never made a governmental declaration establishing a

legally-recognized national denomination or religion. The two jurisdictions have remainedseparate since the beginning. However, the presence of American religious culture within the

public sphere has also been present since the birth of this country. Therefore, the separation of

church and state can only be interpreted as the separation of jurisdiction of each institution andnot the separation of the expression of American religious culture from the public sphere.

Since the Supreme Court incorporated the First Amendment into the States and

constitutionalizing the phrase separation of church and state in Everson v. School Board ofEducation, 330 U.S. 1 (1947), separatists have increasingly used the legendary phrase and theEstablishment Clause to chisel away from the public arena this nations religious heritage,

especially in public primary and secondary schools, those years encompassing a childs crucial

development and formation of moral values. This thesis will argue that a Historical Standard orTest emerges from the original intent of the Framers extracted from historical documents. The

standard, though simple, is not simplistic; it condenses the fervent arguments of those whose

right to religious freedom of conscience was threatened. Applying this standard to constitutional

challenges based on the religion clauses of the First Amendment will help to halt separatistsfrom eradicating religion from the public sphere and bring consistency to court rulings withoutvanishing Americas religious heritage into historical and political obscurity.

Purpose Of The Religion Clauses Of The First Amendment

The purpose of the First Amendment was to separate the legal institutions of church and

the state to protect the peoples right to worship the God of Nature according to their sincerely-

held religious convictions, not to separate or eradicate religious expression from or withingovernmental institutions. Evidence from the Journal of the Continental Congress, Supreme

Court decisions, historical documents, and the lives and actions of the Founders and Framers

support the conclusion that the terminology they used in the legal documents they penned and

the religious principles they practiced while holding public office do not support the argument

that their original intent was to separate religion (Christianity) from the public sphere, but ratherthat the separation was to be between the civil and religious institutions. The Ten

Commandments and certain books of the Torah (Pentateuch, the first five books of the Bible),which are revered in Christianity and Judaism, are more than religious documents; they are also

historical documents from which much of Western civilization derives its laws. To deprive

7 For the purpose of this paper, the word religion is restricted to Judeo-Christian-based religions and no

other.

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Americans of the historical and literary importance religion has in the founding of this country isas damaging as withholding from their academic experiences any other historical document

which contributed to the formulation of the American legal and governmental systems. That

current separation doctrine allowing for the use of religious documents within history andliterature brings to question why there is so much litigation when they are used within those

parameters. If the violation occurs when they are taught as revealed truth, then the mere postingor engraving of Biblical phrases should not present a problem because the reader has a choice asto whether to revere them. Much of this type of litigation would be frivolous if the citizenry

were more knowledgeable about the importance of religion, mainly Protestantism, and the actual

issues that precipitated the two clauses. Diligently investigating American history will unearth

that the intent of the Establishment and Free Exercise Clauses as applied today is much differentfrom what the Framers envisioned.

The original intent of the Framers is neither indiscernible nor unattainable; it can be

deduced from historical documents. Numerous Supreme Court opinions refer to the intent of the

Framers in formulating their arguments. Of all the legal topics for which original intent may besought and deduced, the area covering the Establishment and Free Exercise Clauses are the

simplest to decipher because the contentions are few, very clear, and supported by an abundanceof historical and legal material. The religious prohibitions enforced today do not find theirstrength in history, the Bill of Rights, or the Constitution. There is a preponderance of evidence

in early American documents supporting the conclusion that the separation of these two

institutions was to be the severance of the legal alliance between them, not the disunion ofreligious and legal principles that promote social order, a mutual interest of both institutions.

Ascer taining Original Intent

The overwhelming evidence behind the Establishment and Free Exercise Clauses reaches

far back into American colonial history. In the colonies, dissident Christians, such as theBaptists and Quakers, suffered much persecution because their religious conscience ran contrary

to the beliefs sanctioned by colonial governments, some of which were tied to religious

institutions. After the Revolutionary War, religious dissenters were concerned that the federalgovernment would charter or create a national church. In fact, their concern was more like

dread. Justice Joseph Story pinpoints the origin and nature of the trepidation:

We are not to attribute this prohibition [on the federal government] of a national

religious establishment to an indifference to religion in general, and especially toChristianity, (which none could hold in more reverence, than the framers of the

Constitution,) but to a dread by the people of the influence of ecclesiastical power

in matter of government; a dread, which their ancestors brought with them fromthe parent country, and which, unhappily for human infirmity, their own conduct,

after their emigration, had not, in any just degree, tended to diminishProbably,

at the time of the adoption of the Constitution, and of the amendment to it, now

under consideration, the general, if not the universal, sentiment in America was,that Christianity ought to receive encouragement from the State, so far as such

encouragement was not incompatible with the private rights of conscience, and

the freedom of religious worship. An attempt to level all religions, and to make it

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a matter of state policy to hold all in utter indifference, would have createduniversal disapprobation, if not universal indignation.8

According to Story, the First Amendment, drafted to restrict the power of the federal

government, eliminate the temptation so easily available to those in power: to legislate the

exclusivity of that power. Thus, the legal separation of the institutions of church and state is

imperative, accomplished by commissioning the Establishment Clause of the First Amendmentas guardian over the Free Exercise Clause and placing the freedom of religion among the first

fundamental freedoms mentioned in the Bill of Rights: Congress shall make no law respectingan establishment of religion, or prohibiting the free exercise thereof. The phrase separation of

church and state, however, is nowhere to be found in the document and yet, it has become an

appendage to it, to which the courts have progressively given equal weight. With theincorporation of the First Amendment via the Fourteenth Amendment, the several states are

likewise prohibited from proclaiming a religious sect as the state-sanctioned religious institution.

Prior to the Fourteenth Amendment, however, the states were free to establish a state church.

Also not mentioned in the Constitution is the prohibition on federal and state employeesfrom exercising their religious freedom or their constitutionally protected fundamental right of

religious speechwhether it be informational or persuasive, written, oral, or symbolicwhile

performing their employment duties. Finally, there is no textual evidence that the Constitution

explicitly or implicitly prohibits non-state employeesprivate citizens, including childrenfrom exercising the same rights should they be exercised on government property, such as

carrying a Bible or writing about a biblical story for a class assignment.

The people of the United States have tacitly consented to adhere to the Constitution since

its ratification, thus heightening the importance of understanding the vision the Framersconcerning the First Amendment. As with any historical document, its clearest meaning is

obtained by studying the events, language, and social context in which it was written. These set

the parameters within which a historical document will reveal its most accurate, initial meaning.

It would be improper to superimpose contemporary language use and events upon a historicaldocument to derive its interpretation, and since the countrys political and legal foundationsalong with individual freedoms are at stake, it is imperative that those using the Constitution as a

legal defense are intimately familiar with the historical parameters within which it was written to

derive its most accurate meaning.

Some say, however, that the original intent of the Framers is irrelevant; since they arelong gone, what they intended is no longer applicable. Others like Justice Brennan say that the

meaning of the Constitution is evolving, changing according to what it means in our time.

Justice Brennan feels [it] is arrogant to pretend that from our vantage we can gauge ac curatelythe intent of the Framers on application of principle to specific, contemporary questions.9 Raoul

Berger quotes A. S. Miller as saying that the Constitution should be left to succeeding

generationsto rewrite the living Constitution anew.10 However, the Constitution cannot berewritten if it is to remain the standard against which deviance is to be measured. The specific,

8 Joseph Story, A Familiar Exposition of the Constitution of the United States 2d ed. (New York: Harper,

1859; reprint, Lake Bluff, Illinois: Regnery Gateway, 1986), 314, 316.9 William J. Brennan Jr. The Constitution of the United States Contemporary Ratification, in

Constitutional Interpretation, 5th ed. Ducat and Chase (St. Paul: West Publishing, 1972), 62.10 Raou Berger, Government by Judiciary: The transformation of the Fourteenth Amendment, 2d ed., with

a foreword by Forrest McDonald (Indianapolis: Liberty Fund, 1997), 402.

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contemporary questions are the ones changing, not the Constitution. That particular factschange over the years does not mean that the standard against which they are measured has to

change along with them. Modern facts can still be judged against the initial concept the Framers

had in mind precisely by studying the conclusions they derived when they applied theConstitution to their own contemporary facts. Perhaps in doing so, Supreme Court opinions

would be more consistent and less troublesome to legislators and the legal profession.It is misleading to say that the attempt to accurately gauge the intent of the Framers is

arrogant and impossible, for some of them speak contrary to Brennan. Alexander Hamilton isquoted as saying that [t]o avoid arbitrary discretion in the courts, it is indispensable that they

[the judges] should be bound down by strict rules and precedents, which serve to define and

point out their duty in every particular case that comes before them11

(emphasis in the original).Justice Brennan would agree that the courts should be bound to precedence; however, the rules

and early precedence then applied to generate it should be the guide and standard because of

their proximity to the ratification of the Constitution. Furthermore, those who witnessed or

participated in its creation were the ones applying the rules and precedence to their contemporaryissues. It is not inconceivable that to Hamilton, an evolving Constitution was far from strict

rules and precedents; the Constitution was the strict rule.

Justice Joseph Story, one of the fathers of American jurisprudence, quotes Justice

Blackstone on the interpretation of the Constitution as follows:

400. I. The first and fundamental rule in the interpretation of all instruments is,

to construe them according to the sense of the terms, and the intention of the

parties. Mr. Justice Blackstone has remarked, that the intention of a law is to be

gathered from the words, the context, the subject matter, the effects andconsequence, or the reason and spirit of the law. He goes on to justify the remark

by stating, that words are generally to be understood in their usual and most

known signification, not so much regarding the propriety of grammar, as their

general and popular use; that if words happen to be dubious, their meaning maybe established by the context, or by comparing them with other words andsentences in the same instrument; that illustrations may be further derived from

the subject-matter, with reference to which the expressions are used; that the

effect and consequence of a particular construction is to be examined, because, ifa literal meaning would involve a manifest absurdity, it ought not to be adopted;

and that the reason and spirit of the law, or the causes, which led to its enactment,

are often the best exponents of the words, and limit their application.12

That the spirit of the law be considered in interpreting the Constitution does not mean that theConstitution itself should be rewritten as society evolves. In fact, saying that the Constitution

is a living document is a misnomer that defeats the purpose of the document, which is to be the

standard against which all laws are measured. A standard cannot change; only the facts to whichit is applied do. What is, therefore, the spirit of the Establishment and Free Exercise clause?

By studying the arguments ardently presented by those whose religious liberty was at stake, the

spirit was to prohibit the legislative declaration of a national church, to keep the legal

11Ibid, 404.12 Joseph Story, Commentaries on the Constitution of the United States, [book on-line]; available from

http://www.constitution.org/js/js_000.htm, accessed 14 November 2001.

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institutions of church and state separate so that there would be no religious test to run for orhold public office, and to prohibit religious taxation of people who were not represented within

the denomination imposing the tax.13 That spirit has not changed and it can be applied today

to a myriad of scenarios regardless of the particular facts of the case. To avoid literal meanings[that] would involve a manifest absurdity, there is no better guide to constitutional meaning

than early jurisprudence, legislative enactments, and the plain, ordinary meaning of words withintheir cultural contexts.

The Oxford English Dictionary offers the definition of the word establish as used incolonial times:

EstablishmentI. Action or means of establishing.

1. The action of establishing; the fact of being established: in various sensesof the vb. 1688 Col. Rec. Penn. I. 226 That such Sanction and

Establishment may be as Effectual and binding as any Law. 1739 BUTLER

Serm. Wks. (1874) II. 225 The bare establishment of Christianity in anyplace...is a very important and valuable effect. 1788 W. GORDON (title)

The History of the rise, progress and establishment of the United States of

America.

2. esp. The establishing by law (a church, religion, form of worship). (SeeESTABLISHv. 7.) a. In early use, the settling or ordering in a particularmanner, the regulating and upholding of the constitution and ordinances of

the church recognized by the state. b. In 17th-18th c. occasionally the

granting of legal status to (other religious bodies than that connected with

the state). c. Now usually, the conferring on a particular religious bodythe position of a state church. 1640-1 LD. DIGBY Sp. in Rushw. Hist.Coll. (1721) IV. 172 A Manthat made the Establishment by Law the

Measure of his Religion. 1706-7Act 5 Anne c. 5 Securing Ch. Eng., Acts ofParliament now in Force for the Establishment and Preservation of the

Church of England.14

Establish

7. From 16th

c. often used with reference to ecclesiastical ceremonies ororganizations, and to the recognized national church or its religion; in early

use chiefly pass. in sense (esp. in phrase by law established, i.e.,

prescribed or settled by law)Hence, in recent use: To place (a church or

a religious body) in the position of a national or state church. 1660 CHAS.II Declar. Eccl. Affairs 25 Oct 8 Theesteem we have for the Church of

England, as it is established by Law. 1731 CALAMYLife (1830) I. i. 73

Opposition to the church by law established. 1731 SWIFT Presbyterians

13 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard

University Press, 1992), 263.14 Oxford English Dictionary, s.v. establishment, [database on-line]; available from

http://dictionary.oed.com. Accessed 20 April 2002.

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Plea MeritWks. 1776 IV 260 Which [Presbyterian] sect was established inall its forms byan ordinance of the lords and commons.15

Definitions 2 and 7 are of particular interest because they make a clear connection

between the establishment of a church or religion with the state through law. The colonial usage

of the word clearly shows that in relation to a church or religion, the word establish or

establishment has no application other than a declaration by the legislative branch giving areligious organization exclusive recognition and privilege.

There are several examples where political leaders have emphasized the importance of

the plain understanding of words used at the time of ratification. In his inaugural address,Thomas Jefferson promised to oversee the Constitution according to the safe and honest

meaning contemplated by the plain understanding of the people at the time of its adoptiona

meaning to be found in the explanations of those who advocated [it]16

(emphasis added). Inascertaining the meaning of the word commerce, Chief Justice Marshall stated in Gibbons v.

Ogden that all Americans understood the meaning of the word as they used it at the time of the

ratification:

To ascertain the extent of the power [of Congress to regulate commerce], itbecomes necessary to settle the meaning of the word [commerce]Commerce,

undoubtedly, is traffic, but it is something moreit is intercourse. It describes

the commercial intercourse between nations, and parts of nations, in all itsbranches, and is regulated by prescribing rules for carrying on that intercourse

if commerce does not include navigation, the government of the Union has no

direct power over that subjectAll America understands, and has uniformly

understood, the word commerce to comprehend navigation. It was understood,and must have been so understood, when the Constitution was framedThe

convention must have used the word in that sense, because all have understood it

in that sense; and the attempt to restrict it comes too late.17

Justice Sutherland in Euclid v. Ambler Co., 272 U.S. 365 at 387 (1926) stated, the meaning ofthe constitutional guaranties never varies, [although] the scope of their application must expand

or contract to meet the new and different conditions which are constantly coming within the fieldof their operations. The meaning that never varies must be referring to the original intent of

the Framers, which is knowable to a great degree through the study of their political and personal

actions, beliefs, and statements within the culture and events from which it emerged. Thus, theimmutable meaning of any constitutional principle must determine whether the varying

contemporary issues to which it is applied are constitutional. The importance of the original

intent is so great that James Madison gave this warning: [if] the sense in which the Constitutionwas accepted and ratified by the Nation be not the guide in expounding it, there can be no

security for a consistent and stable [government], more than for a faithful exercise of its

powers.18 That sense is derived from the original intent embedded in the culture and eventsthat generated it.

15 Oxford English Dictionary, 2nd ed., s.v. establish.16 Berger, 405.17 Gibbons v. Ogden, 22 U.S. 1 (1824) at 190.18 Berger, 4.

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The sense which is embodied in the Establishment and Free Exercise clauses is clearand narrow; its historical conception is easily identified and defined. In his book, Taking Rights

Seriously, Ronald Dworkin illustrates the existence of conceptions within each concept

presented in the Bill of Rights. According to him, the principles, concepts, or sense in theConstitution and especially in the Bill of Rights, carry within them a number of different

conceptions. He gives the example of the concept of fairness. Within it, there are manyconceptions of what constitutes fairness. He recounts his example thus:

Suppose I tell my children simply that I expect them not to treat others unfairly. Ino doubt have in mind examples of the conduct I mean to discourage, but I would

not accept that my meaning was limited to these examples, for two reasons.

First, I would expect my children to apply my instructions to situations I had notand could not have thought about. Second, I stand ready to admit that some

particular act I had thought was fair when I spoke was in fact unfair, or vice versa,

if one of my children is able to convince me of that later; in that case I should

want to say that my instructions covered the case he cited, not that I had changedmy instructions. I might say that I meant that family to be guided by the concept

of fairness, not by any specific conception of fairness I might have had in mind19(emphasis in original).

Dworkin argues that judges can use political philosophy to decide what a conception of aconcept might be. He states that the constitutional text only provides concepts like due process,

cruel and unusual punishment, and free exercise of religion. The document does not, however,

provide the conceptions within those concepts. It is precisely because of the lack of textualconceptions that we must intently look at early American history to articulate them.

In his scenario, Dworkin states that he has in mind examples (the conceptions) of fairness

(the concept). It is therefore not unreasonable to infer that for a concept to be conceived there

must be an initial conception, at least one conception that generates the concept; concepts are not

generated in a vacuum. There must be at least one conception of fairness to generate aninclusive concept of fairness; there must be at least one conception of due process or commercefor their concept to be birthed. That initial conception sets the parameters for the others

following, determining whether they legitimately belong within the concept. The same applies to

the two clauses of the First Amendment at issue as well as to the word religion itself.

In Reynolds v. United States, 98 U.S. 145 at 162 (1879), Chief Justice Morrison R. Waitefound it necessary to go outside the Constitution to determine the meaning of the word

religion: We must go elsewhere, therefore, to ascertain its meaning, and nowhere more

appropriately, we think, than to the history of the times in the midst of which the provision was

adopted. The precise point of the inquiry is, what is the religious freedom which has been

guaranteed (emphasis added). Eleven years later, the Court in Davis v. Beason, 133 U.S. 333 at

342 (1890), defined religion as a term that

has reference to ones view of his relations to his Creator, and to the obligationsthey imposed of reverence for his being and character, and of obedience to his

will. With mans relations to his Maker and the obligations he may think they

impose, and the manner in which an expression shall be made by him of his belief

19 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 134.

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on those subjects, no interference can be permitted, provided always the laws ofsociety, designed to secure its peace and prosperity, and the morals of its people,

are not interfered with.

According to the Court, religion has a Supreme Being, the Creator, or Maker, whom mankind

obeys, reveres, and with whom mankind has a relationship. It is fascinating to note here that it

took approximately one hundred and ten years after the ratification of the Constitution for theCourt to find it necessary to define religion. It was not until the introduction of Mormonism that

the Court addressed this issue. Most probably, the reason for this is that up until that time, mostof the existing denominations were actually sects of the same religion, Christianity. There was

no need for definition before this time because the safe and honest meaning [of religion]

contemplated by the plain understanding of the people was Christianity. Therefore, theconception within the concept of religion in the First Amendment is very narrow: its

parameters are set by Christianity, including the teachings of Old Testament Judaism from which

Christianity derives its historical and theological context and origin. Islam, and to a lesser

degree Hinduism, also qualify as religions under the Davis definition because they too have atleast one god who requires allegiance and obedience.

Among all the fundamental freedoms protected in the First Amendment, the free exercise

of religion and the prohibition on religious establishment are the least complicated. Although the

concept of the Due Process Clause of the Fifth and Fourteenth Amendments and the EqualProtection of the Fourteenth Amendment may have numerous conceptions, which are outside

the scope of this thesis, the conceptions of religion within the Establishment and Free Exercise

Clauses must align themselves to these narrow issues: 1) the establishment of a national religionto which special privileges are rendered, 2) the religious test to hold public office, and 3) the

financial support of the established national religion via taxes paid by citizens not represented

within that religion. These issues culminated in the drafting of the First Amendment andsurfaced in the years between the early 1600s and the ratification of the Constitution in 1789. In

order to arrive at an understanding of the initial conceptions within the concepts of religiousestablishment and free exercise in the First Amendment, an investigation of the historical context

covering those one hundred and ninety years is imperative.

Colonial Underpinnings of the Religion Clauses

The Church of England traditionally enjoyed legally established preeminence over other

denominations, which was supported by the Crown.20

During his reign in the late sixteenth andearly seventeenth centuries, King James I was not tolerant of religious dissenters from the

Anglican Church. He persecuted Separatists, some of which were Baptists, and vowed to make

them conform themselves, or [he would] harrie them out of the land.

21

These religious migrantsfled England and found asylum in Holland. The ones who settled in Leiden became the Pilgrims

who made their way to Plymouth Rock in 1620. To distinguish themselves from the Puritans

and other Separatists, the Plymouth congregation drafted the Baptist Confession of 1612, whose

Article 84 declared:

20 Gordon S. Wood, The Radicalism of The American Revolution (New York: Alfred A. Knopf, 1992), 17.21 James E. Wood, Jr. Introduction, in Baptists and the American Experience, ed. James E. Wood, Jr.

(Valley Forge: Judson Press, 1976), 11.

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That the magistrate is not by virtue of his office to meddle with religion, ormatters of conscience, to force or compel men to this or that form of religion, or

doctrine: but to leave the Christian religion free, to every mans conscience, and

to handle only civil transgressions (Rom. xiii), injuries and wrongs of man againstman, in murder, adultery, theft, etc., for Christ only is the king, and lawgiver of

the church and conscience (James iv. 12).

22

This is perhaps the first document advocating the separation of church and state.23 Although the

Article pertains only to Christians because it was a Christian sect asserting the separation, theargument remains universal. The Article focuses on the separation of the office of the king from

religious matters. Only Christ is to be king over the church, its only lawgiver. The document

states that the magistrate is not authorized by virtue of his office to legislate and compel thecitizenry to adhere to a state-sanctioned form or doctrine of religion, that being the Church of

England. Civic office does not give the magistrate the legal authority to meddle within the

sphere of religion. There is, however, no mention of any separation of Christian values,

principles, or symbols from the civic realm. To acknowledge the moral principles derived fromChristianity that will promote good social order is not contrary to keeping the two institutions

separate. The separation was purely legal in nature, that being, statutory: the state cannotstatutorily declare establishment of one denomination over another.

Another Separatist, Leonard Busher, while zealously fighting for the full freedom ofreligious conscience of all people back in England, including Jews and Catholics, he specifically

vocalized his support of religious freedom for the Baptists:

King and magistrates are to rule temporal affairs by the swords of their temporal

kingdoms, and bishops and ministers are to rule spiritual affairs by the Word andSpirit of God, the sword of Christs spiritual kingdom, and not to intermeddle one

with anothers authority, office, and function It is not only unmerciful, but

unnatural and abominable, yea, monstrous, for one Christian [Anglican] to vex

and destroy another [Baptist] for difference and questions of religion.24

The focus of this passage is for the Church and State not to intermeddle one with the others

authority, office, and function. These three areasauthority, office, and functionare thoserelated to governmental authority, not individual practice. The tone of these two proclamations

is one calling for religious plurality within a Christian community and a nation that does not have

a legally established religion. Since the contending religions had a common origin, it was crucialthat the state did not legally recognize one over the other.

By contrast, the Puritans were more concerned with securing religious purity within the

decadence of the Church of England than with religious freedom of conscience. To them,

religious freedom represented the Crowns protection against Catholicism.25

In their analysis of

the Anglican Church during the rule of the Stuarts, its theological and practical tendenciesmoved too closely to that of the Roman Catholic Church, thus destroying the protection of their

22Gordon Wood, 12-13.

23Ibid.24 James E. Wood, Jr., 13.25 Jeffrey M. Kahl, The Righteous Cause of Liberty: Christianity and the American Revolution.

Masters Thesis, Ashland Theological Seminary, 1997, 18.

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religious liberty.26

The Puritan John Winthrop and the others at the Massachusetts Bay Colonydid not necessarily want to separate from the Church of England. According to their belief, God

had made a special covenant with them, commissioning them to live according to the Scriptures,

to reform the Church, and to demonstrate to their brethren in England that their community willbe as a city upon a hill,27 a beacon for the rest of Christendom, and a pure theocratic entity. It

was imperative for the Puritans that the church and civil government remain together to achievea truly moral society, although ministers could neither hold public office nor could they exerciseany political authority. Membership in their Congregationalist churches and the community

measured an individuals commitment to Christianity. To them, democracy was deplorable and

religious tolerance of other dissident Christians was actually anti-Christian.28 The

Congregationalist pastor John Cotton believed that theocracy was the best forme ofgovernment in the commonwealth, as well as in the church.29

It is important to understand the Puritans desire to keep the church and state together

because it is the backdrop against which the argument for the separation of the two institutions is

staged. Roger Williams, initially a Puritan, was banished by the Puritans from the MassachusettsBay Colony to Rhode Island for his radical theology and his extreme views, among which was

the separation between church and state. He insisted that the civil magistrates had no businesspunishing people for their religious beliefs, that the state is not religious or Christian, and thatcivil authority is natural, human, and civil.30 Williams cared so much about the church that he

insisted that the two entities be separate. According to the authors Isaac Kramnick and R.

Laurence Moore, since [Williams] came to believe that no organized church possessed all ofGods truth, he concluded that any effort to sanction by law an official religion impeded the

advance of Gods millennial church.31 The key in their statement is the sanction by law of an

official religion (emphasis added). Williams further stated, [n]o civil government or country

can be truly called Christian, although true Christians be in it.32

These early ideas of separationof church and state do not in any way support the exclusion of religion in the public sphere nordo they prohibit the exercise of Christian morals and values, or the display of religious symbols,

within the civil or public arena. The writers themselves note that Williams contention was withthe sanctioning of an official religion; government should not declare an official church or a

state religion33

(emphasis added). Williams was not concerned with religious principles,wording, or symbols being brought within governmental walls. What this colonial American

sought was a legal separation of the two entities so that membership in the church would not

qualify participation in public office. The common denominator in all his statements is theseparate source and exercise of authority: government and church authority do not overlap; they

have distinct origins, functions, and spheres.

Williams was very much persecuted for his religious beliefs and the political implications

they carried. However, contrary to Kramnick and Moores opinion, Williams was not inventing

26Ibid.

27 Matthew 5:14.28 James E. Wood, Jr., 15.29Ibid.30

Ibid., 16.31 Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case Against Religious

Correctness (New York: W. W. Norton & Co., 1996), 52.32 James E. Wood, Jr., 16.33 Kramnick, 58.

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a godless politics.34

In fact, they fail to define what they mean by godless Constitution andignore the numerous times that Congress appropriated funds for the support of ministers and

provided statutory formations of religious schools. 35 What Williams was trying to create was an

institutionally non-denominational polity, and the two are very different. Religion denotes adogma, a ritual, a creed, and a set of rules within a corporate entity. A Supreme Being is the

recipient of worship and faith, and that faith, that trust, is carried within people, affecting howthey will comport themselves in all aspects of their life, even their political life. If it were truethat Roger Williams intent was to withdraw all religion references from the political sphere,

then he would not have approved Rhode Islands 1663 charter. The charter strictly prohibited

any persecution by the state of any person exercising freedom of religion:

[We h]ave therefore thought ffit, and doe hereby publish, graunt, ordeyne anddeclare, That our royall will and pleasure is, that noe person within the sayd

colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted,

or called in question, for any differences in opinione in matters of religion 36

It is very interesting, however, that in the same legal document the following statement is found:

whereby oure sayd people and inhabitants, in the sayd Plantationes, may besoe religiously, peaceably and civilly governed, as that, by theire good life and

orderlie conversations, they may win and invite the native Indians of the countrie

to the knowledge and obedience of the onlie true God, and Saviour ofmankinde.37

Did he who advocated separation of church and state contradict himself? Is it contradictory for

the signers of this document to have said that the behavior of the citizens of Rhode Island should

have been of such godly manner that they may win and invite the native Indians of the countrieto the knowledge and obedience of the onlie true God, and Savior of mankide and still demand

freedom of religion from state control? The God and Savior to whom they referred is the

Christian God and Savior, Jesus Christ. If there was a contradiction in fact concerning the

separation of church and state, this document does not reveal it. The document does reveal thatthe authors included within a legal document a religious goal, from which can be deduced that

their intention was to separate the institutions, not to bar the inclusion of words and meanings ofreligious values. Whether the document promotes religion in private life only and not public life

is not the issue; the issue is that religious terminology was included in a legal, political

document, which today some would argue as unconstitutional, violating the EstablishmentClause of the First Amendment. The belief may be private, but the document expressly declares

a public religious goal.

Kramnick and Moore use Roger Williams life and statements to support a Constitution

void of religion. But they neglect to emphasize that Williams contention was strictly one of

34Ibid., 62.

35 Erez Kalir, Book Note: Is the Constitution "Godless" or Just Nondenominational? Yale Law Journal,

106 Yale L.J. 917, (1996): 919. See also, Northwest Ordinance; July 13, 1787, Avalon Project at Yale Law School

[database on-line]; available from http://www.yale.edu/lawweb/avalon/nworder.htm, Section 14, Article 3.

Accessed 21 April 2002.36 Charter of Rhode Island and Providence Plantations - July 15, 1663, Avalon Project at Yale Law School

[database on-line]; available from http://www.yale.edu/lawweb/avalon/states/ri04.htm. Accessed 18 November

2001.37Ibid.

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institutional establishment of religion by legislation, which would in turn hinder religiousfreedom of conscience. It is interesting to note that John Clarke, who was largely responsible for

the issuance of the 1663 charter, is considered both as the Father of Rhode Island as well as the

Father of American Baptists.38

Christian doctrine played a major role in influencing the politics of the American

Revolution; the Baptists in particular spearheaded the severance of religious and politicalinstitutions.39 The Great Awakening of the mid eighteenth century had a great impact on

colonial life. This protestant, evangelical movement focused on personal accountability beforeGod, personal revelation of the Scriptures, individual repentance and salvation through faith in

Christ, and called into question the entire Puritan societal system.40 It also sought to erase the

contentions between Protestant sects. As George Whitefield eloquently said, Dont tell me youare a Baptist, and Independent, a Presbyterian, a dissenter tell me you are a Christian, that is

all I want. It was also the catalyst for the increase in dissenting religious groups, causing the

New Lights to split from the Old Lights who were the forerunners of Unitarianism41 and saw

the New England community as a Christian society whose continuity was ordained by God andwas threatened by the individualistic salvation of the New Lights. To them, America was a

holy commonwealth42 and the separation of church and state threatened its stability.Awakened New Light Congregationalists who refused to adhere to their Old Light churchdoctrines and insisted on ordaining their own pastors formed their own Separate

Congregational churches, many of which became Baptist.

The individual responsibility toward faith in God translated to the political ideology of

civil and religious separation, since Christ and His Scriptures are the only binding authoritiesfor individual Christians.43 Therefore, civil government had no authority to dictate what a

person should believe about God and religion. One of the most outspoken Baptist preachers

arguing for religious liberty and the separation of church and state was Isaac Backus. He, likemany other colonial preachers, wrote pamphlets to propagate their view and turn the tide of

religious as well as political opinion. History of New England was Backus most influentialwork in which he makes it clear religious oppression was not the principle upon which New

England was established, and that such oppression was an intruder that came afterwards. The

founders of New England fled England for freedom of conscience. With the subtitle of hispamphlet, with Particular Reference to the Denomination of Christians Called Baptists, he

inferred that the Baptists were the true successors of the New England founders mission:

religious freedom of conscience.44 His political theory based civil authority on the consent of the

governed and demonstrated that power becomes corrupt when civil and ecclesiastical authoritiesintermingle.45 The desire for religious liberty of conscience paralleled the secular liberty the

38 James E. Wood, Jr., 17.39

Bailyn, 245-72.40

Mark A. Noll, From the Great Awakening to the War for Independence: Christian Values in the

American Revolution in Christian Scholars Review 12, no. 2 (1982): 100-1.41Ibid., 101.42Ibid., 103.43

Kahl, 39.44 Winthrop S. Hudson, Baptists, the Pilgrim Fathers, and the American Revolution in Baptists and the

American Experience, edited by James E. Wood, Jr. (Valley Forge: Judson Press, 1976), 29-30.45 Isaac Backus, An Appeal to the Public for Religious Liberty, in On Church, State and Calvinism, ed.

William G. McLoughlin (Cambridge: Harvard University Press, 1968), 316-325.

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colonists sought from England; fighting the tyranny hindering religious and political self-governance were concurrent and righteous revolutionary causes. Dissent from well-grounded

Anglican laws was the non-violent weapon of choice.

The Church of England was suffering dissent throughout the colonies. As early as 1740,

New Light Presbyterians in Virginia defied ecclesiastical mandates, and Roman Catholics held

public office although there were laws excluding them. Many dissenting groups were exemptfrom paying church taxes and Anglican Communion. Separatists in Connecticut and

Massachusetts were so persuaded that they were the only true orthodoxy[that they] refused toaccept the legal benefits available to officially recognized dissenters. They insisted that liberty

of conscience was an unalienable right of every rational creature, and demanded complete

separation of church and state.46

By contrast, and because the established Anglican Church was so tenuous, recognizeddissenters in Connecticut and Massachusetts enjoyed tolerance in worship and exemption from

Church taxes to such an extent that John Adams described the situation as the most mild and

equitable establishment of religion that was known in the world, if indeed [it] could be called anestablishment.47 His statement is revelatory in that it equates entrenched religious concessions

with dissenters to the deeply rooted laws of the Church of England, which was the and only

established church possessing the supreme authority and power sanctioned by the state, and

reveals the colonial conception of what was considered the establishment of religion during theRevolutionary Era. It is obvious that in the mind of John Adams establishment had more to do

with the requirements a church placed on the citizens of a locale rather than the individual

religious practices of individuals within their private as well as public spheres.

The colonial conception of establishment is further refined by William Livingston, apamphleteer and New York lawyer who, with a group of colleagues, campaigned against the

privileges of the Church of Englands college in New York, mounting the offense within the

pages of the Independent Reflector in 1753. As Bernard Bailyn describes it, the issue Livingston

confronted was the right of any one religious group [the Anglicans] to claim for itself exclusiveprivileges of public support[He] advanced for the first time in American history theconception that public institutions, because they were public, should be if not secular at least

non-denominational48 (emphasis added). The main contention was not that a religion was

receiving public funding, but that it received it in exclusion of all other religions; only themembers of the Anglican Church at the expense of dissenters enjoyed the privileges.

That to the colonists the word establishment meant nothing other than the

governments disbursement of privileges or favors to one religious sect over another and

enforcing legal requirements on the population regardless of its religious make-up is evident bythe fears and accusations the dissenters hurled against the Anglican Church and the King based

on their legal and ecclesiastical inseparability. The clergy in Virginia protested against the Two

Penney Act of 1759, which they contended illegally devalued their salaries. Their protest was sosuccessful that it defeated the Act in England and prompted the Bishop of London to issue a

castigatory letter denouncing the people of Virginia for [their] disrespect to the Church of

46 Baylin, 248-9.47 Diary and Autobiography of John Adams, III, 312, quoted in Bernard Bailyn, The Ideological Origins of

the American Revolution (Cambridge, MA: Harvard University Press, 1992), 248.48 Bailyn, 250.

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England, laxness in dealing with dissenters, and a desire to lessen the influence of the crown andthe maintenance of the clergy. Patrick Henry actually defended the Act, stating that the only

use of an established church and clergy in society is to enforce obedience to civil sanctions, and

when a clergy cease to answer these ends, the community have no further need of theirministry, and may justly strip them of their appointment. Instead of being worthy agents of the

state, these dissenting Anglican ministers ought to be considered as enemies of the community,andvery justly deserved to be punished with signal severity.49

Contrary to Henrys views, Virginians were adamantly opposed to the merger of churchand state. Jonathan Mayhew, a pamphleteer experienced in both politics and theology, attacked

the Church of Englands appointment of East Apthorp as missionary of its Society for the

Propagation of the Gospel outside of Harvard College, warning that [i]f the Church of Englandwere ever established in New England, religious oaths would be demanded as they were in

England and all of us [would] be taxed for the support of bishops and their underlings.50 Such

a widespread establishment of the Church would require an act of Parliament or royal

proclamation. According to Mayhew, neither Parliament nor the crown had any right to interferewith the internal affairs of the colonies through the manipulation of religious institutions:

If bishops were speedily to be sent to America, it seems not wholly improbable,

from what we hear of the unusual tenor of some late Parliamentary acts and bills

for raising money on the poor colonies without their consent, that provisionsmight be made for the support of these bishops, if not of all the Church clergy

also, in the same way (emphasis in original).51

Fifty-four years after the Mayhew-Apthorp controversy, John Adams credited it as

spread[ing] an universal alarm against the authority of Parliament. It excited ageneral and just apprehension that bishops, and dioceses, and churches, and

priests, and tithes, were to be imposed on us by Parliament. It was known that

neither King, nor ministry, nor archbishops could appoint bishops in America

without an Act of Parliament; and if Parliament could tax us, they could establishthe Church of England with all its creeds, articles, tests, ceremonies, and tithes,

and prohibit all other churches, as conventicles and schism shops.52

The essence of the contention was the integration of the religious polity with the civil polity, thus

compelling the population to pay for the support of a religion alien to their own withoutreceiving reciprocal benefits.

During the years of the Great Awakening, Separate Baptists, New Light Presbyterian, and

Methodists flooded Virginia, all of them violently hostile to coercion in any form, and all of

them demanding full religious freedom. Nonetheless, the House of Burgesses tried to pass a bill

requiring dissenters to meet only during daylights hours in licensed meeting halls with doorsunlocked; preaching and baptizing slaves was strictly prohibited and dissenters suspected of

49Ibid., 252-3.50

Jonathan Mayhew, Observations... (Boston, 1763), 20-1, 26, 155-56; Richard J. Hooker, The Mayhew

Contraversy, Church History, 5 (1936), 254, Adams, Works, X, 288, as quoted in Bernard Bailyn, The Ideological

Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 256.51Ibid.52 Bailyn, 257.

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disloyalty could be forced to take the test oath and to swear to the articles of the Church ofEngland.53 The dissenters protested with a vengeance, demanding that all Protestant and non-

conformist preachers have the right to preach in all places and at all seasons without

restraint.54

Furthermore, they fervently argued that the pursuit of civil liberty was equal to thepursuit of religious freedom of conscience to preach and teach anywhere in the colonies. The

Virginian electorate ordered the Burgesses to work on a declaration that no religious sectwhatever be established in this commonwealth55

(emphasis added). Finally, persecuted Baptists,Presbyterians, and enlightenment idealists urged James Madison to write the phrases pertinent to

religious freedom in the Virginia Declaration of Rights. Article XVI of the Declaration states the

following:

That religion, or the duty which we owe to our Creator and the manner ofdischarging it, can be directed by reason and conviction, not by force or violence;

and therefore, all men are equally entitled to the free exercise of religion,

according to the dictates of conscience; and that it is the mutual duty of all to

practice Christian forbearance, love, and charity towards each other.56

Delegates from three Virginia counties emphasized that, in light of the inevitable military

struggle with Britain, they sought equal privileges in both religion and civil affairs, since to

establish one denomination over another would be a great injustice, and demanded that without

delay all church establishments might be pulled down, and every tax upon conscience andprivate judgment abolished.57 Presbyterians from Hanover County demanded that no

ecclesiastical establishment be enacted and that no religious group be granted the exclusive or

separate emoluments or privilegesto the common reproach and injury of every otherdenomination culminating in the abolition of all partial and invidious [religious]

distinctions. 58 By their own admission, the non-conformist religious groups considered

establishment equal to granting privileges to one religious group over another, and instead ofdemanding no privileges at all, they wanted privileges for all.

In Massachusetts, the attack on Apthorp was just as heated. His reply to a series ofarticles attacking his extravagant lifestyle and his identification of Christian orthodoxy withepiscopacy shook the profound fears of the non-Anglican community throughout the colonies,

reverberating most strongly in New England, where they feared that America was about to

establish an episcopate. The disdain for the union of church and state was not vaguelyverbalized: We regard neither pope nor prince as head of the church; nor acknowledge that any

Parliaments have power to enact articles of doctrine of forms of discipline or modes of worship

53 G. MacLaren Brydon, Virginias Mother Church and the Political Conditions Under Which It Grew, II,

249 ff., 367 ff., quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA:

Harvard University Press, 1992), 258.54

Ibid., 378-80, 381, 555, 556, 557, quoted in Bernard Bailyn, The Ideological Origins of the American

Revolution (Cambridge, MA: Harvard University Press, 1992), 259.55Ibid.56 Virginia Declaration of Rights, Avalon Project at Yale Law School [database on-line]; available from

http://www.yale.edu/lawweb/avalon/states/ri04.htm. Accessed 7 March 2002.57 Bailyn, 260.58 William T. Hutchison, et al., eds., Papers of James Madison (Chicago: University of Chicago Press,

1962), I, 112, 170-5; Brudin, Virginias Mother Church, II, 562-3, 564, 565, 566, quoted in Bernard Bailyn, The

Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 261.

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or terms of church communion.59

Isaac Backus and his supporters resented civil governmentspower to dole out religious favors to whomever it deemed worthy and to tax them without their

consent to support theology contrary to their convictions, accusing it of hypocrisy for demanding

liberty from England:

[The established church] has declared the Baptists to be irregular, therefore the

secular power stillforce them to support the worship which they conscientiouslydissent from[M]any who are filling the nation with the cry of LIBERTY and

against oppressors are at the same time themselves violating that dearest of allrights, LIBERTY of CONSCIENCE[They call themselves] Sons ofLIBERTY,

but they treat me like sons ofVIOLENCE60 (emphasis in original).

Taxation without representation became the revolutionary cry of the Baptists. They rebelled

against taxes supporting a religious institution, which went contrary to their fundamental beliefs.In his Appeal to the Public for Religious Liberty, Backus argued, religious liberty is so blended

with civil that if one falls it is not to be expected that the other will continue. Only an act of the

legislature can decide which sect is worthy of civil privileges and which one is not, making theselection arbitrary and subject to a majority vote. To their shame, Backus condemned them with

their own words: [H]ave we not as good right to say you do the same thing, and so that wherein

you judge others you condemn yourselves?[Just like] the present contest between Great

Britain and America, is not so much about the greatness of the taxes already laid as aboutsubmission to their taxing power, soour greatest difficulty at present concerns the submitting

to a taxing power in ecclesiastical affairs.61 To the Baptists and all dissenters, religious

freedom of expression was not something an earthly government had the power to bestow on aselect few. The right to worship as their conscience dictated was not a favor or privilege

dispensed at the will of the legislature; it was an inalienable right the Creator imparted to all

human beings.

Against this long battle for religious freedom, the Baptists were rightly concerned that the

right to worship without government compulsion would be abridged or eradicated. Eleven yearsafter the ratification of the Bill of Rights, their apprehension that the separation would not bemaintained was still fresh on their minds as evidenced in a letter the Danbury Baptist Association

sent to President Thomas Jefferson on October 7, 1801. The Association expressed their concern

that what religious privileges [they] enjoy (as a minor part of the State) [they] enjoy as favorsgranted, and not as inalienable rights62 (emphasis added). The phrase separation of the church

and state, which is not found in the Bill of Rights, is actually found in the Presidents reply to

them on January 1, 1802: I contemplate with sovereign reverence that act of the wholeAmerican people which declared that their legislature should make no law respecting an

59Amos Adams, Religious Liberty an Invaluable Blessing, (Boston: Levertt, 1768), quoted in Bernard

Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992),262.

60 Isaac Bachus, A Seasonable Plea For Liberty of Conscience, Against Some Late Oppressive

Proceedings, Particularly in the Town of Berwick in the County of York, (Boston: 1770), 8, 3, 14, quoted in Bernard

Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992),

263. See also, Edwin S. Gaustad, Baptists and the Making of a New Nation in Baptists and the American

Experience, edited by James E. Wood, Jr., (Valley Forge: Judson Press, 1976) 32.61 Backus, An Appeal.62 Thomas Jefferson on the Separation of Church and State, First Amendment Cyber-Tribune [database

on-line]; available from http://w3.trib.com/FACT/1st.jeffers.2.html. Accessed 28 November 2001.

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establishment of religion, or prohibiting the free exercise thereof, thus building a wall ofseparation between church and State.63 From the Associations statement, the fear they

projected to President Jefferson was not that they would be prohibited from exercising their

religious rights, but rather that their rights would be taken away by the state if those rights wereindeed granted favor or privileges and not inalienable rights. Furthermore, in light of the

historical debates evidenced above, their concern focused on the establishment of a sect ofChristian religion as the sanctioned, legislatively approved religion, and respecting it over others,bestowing special favors and privileges on it.

The Baptist Association differentiated between granted favors and inalienable rights.

Surely Thomas Jefferson was familiar with the term inalienable rights which he penned in the

Declaration of Independence. According to Jefferson and all who ascribed to the Declaration,inalienable rights were given to men by their Creator. The source of these rights was not

worldly; rather, the source was above and beyond human authority. To comprehend the legal

difference between the two, definitions are in order. Blacks Law Dictionary defines favors as

acts of kindness or generosity, as distinguished from one that inspired by regard for justice,duty, or right.64 Several definitions of the word inalienable help in ascertaining the full scope

of the meaning. Blacks defines inalienable as not subject to alienation; the characteristic ofthose things which cannot be bought or sold or transferred from one person to another.

65The

Oxford English Dictionary is especially revelatory because it gives definitions of words as they

were used in a particular period. The word inalienable was used as follows:

Inienable, a.

Not alienable; that cannot be alienated or transferred from its present ownershipor relation. 1611 COTGR., Inalienable, unalienable; which cannot be sold, or

passed away. . 1743 J. MORRIS Serm. vii. 197 Godgives all men their being,

and has an unalienable claim to their obedience. 1809-10 COLERIDGE Friend(1865) 120 This right of the individual to retain his whole natural

rs or inalienable rights

granted

independenceis absolutely inalienable.66

The definitions are not restricted to the mere selling of ones rights, but also include theirtransfer, repudiation, surrender, and eradication.67 Whether possessors of such rights are active

or passive agents, neither they nor any outside agent or entity can compel their separation from

the possessor. By contrast, favors are acts of generosity transferred from one person or entityto another or legislatively enacted; so are legal privileges. The members of the Danbury Baptist

Church were not concerned that they themselves would sell, transfer, or surrender their rights to

another, or be compelled to do so, but that the federal government would take away their rights ifthey were to be construed as government-granted favors instead of favo

by the Creator. The source of the liberty made all the difference.

Jeffersons reply to them reassured that the wall of separation was a wall barring only

the legislative body of government, the external entity, from establishing a particular sect of the

63Ibid.64 Blacks Law Dictionary, 6th ed., s.v. favors.65

Ibid., inalienable.66 Oxford English Dictionary, s.v. inalienable, [database on-line]; available from

http://dictionary.oed.com/cgi/entry/00113765. Accessed 20 April 2002.67 Webster's Revised Unabridged Dictionary and WordNet, s.v. inalienable [database on-line]; Available

from http://www.dictionary.com/doctor/. Accessed 19 February 2002.

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Christian religion and prohibiting the free exercise of all religion. The text does not indicate thatthe people are barred from any action. Contrary to Kramnick and Moores view that a wall of

separation, after all, prevents trespassing in both directions,68 the First Amendment is only

prohibiting one party from such trespass much like an injunction. An injunction prohibits only

one party from approaching another. The free party can move about freely in all directions; the

party restricted by the injunction must move away from the free party in its free movement. Aphysical wall may prevent two parties from trespass, but a legal wall may prevent only one partyfrom acting. The religion clauses of the First Amendment are an injunction against the legislative

branch:

blishment Clause is very narrow. Its enlargement can occur

only by ignoring colonial history.

Congress [only one party] shall make no law.

It is not difficult to deduce from historical revolutionary pamphlets and other documents

that the consensus among the colonists and the consequent intent of the Framers was thatgovernment could not bestow special privileges to one Christian sect and deny them to others;

government could not legislatively establish one Christian sect over another in the same manner

that the Church of England was the national church nor could government compel members of

nonconformist religions to pay taxes to support a government-approved established religiousinstitution. If one sect was endowed with special privileges, all should receive the same respect.

Furthermore, government could not bar anyone from public office for the content of religiousconvictions or lack thereof. The Establishment Clause of the First Amendment has effectivelyaccomplished all these goals, and participation in the republican form of government guarantees

representation in the legislature to secure the equal treatment. Nothing in the Clause or in the

historical record alludes to the prohibition of government funding of religion as long as it isavailable to all religions, even if one religion is in the majority within a particular community.

The conception within the Esta

Legal, Governm ental, and Biographic al Evidence

That the Establishment Clause did not prohibit the inclusion of religious words, symbols,

and practices within governmental documents, buildings, and events finds support in the

government documents themselves. The Continental Congress, the United States Congress, andvarious courts decisions give an accurate record of religious inclusion into the political and legal

spheres well into the nations second century of its existence. The Declaration of Independence

is the cornersto

requires that they should declare the causes which impel

them to

among these are Life, Liberty, and the Pursuit of Happiness-That to secure these

ne of this inclusion:

WHEN in the Course of human Events, it becomes necessary for onePeople to dissolve the Political Bands which have connected them with another,

and to assume among the Powers of the Earth, the separate and equal Station to

which the Laws of Nature and of Nature's God entitle them, a decent Respect tothe Opinions of Mankind

the Separation.

WE hold these Truths to be self-evident, that all Men are created equal,

that they are endowed by their Creator with certain unalienable Rights, that

68 Kramnick, 43.

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Rights, Governments are instituted among Men, deriving their just Powers fromthe Consent of the Governed

There are two phrases that warrant specific attention: the Laws of Nature and of Natures God

and that all Menare endowed by their Creator. Regardless of some of the Founders

personal religious beliefs, the fact remains that they all ascribed to this wording penned by

Thomas Jefferson, a presumed deist. In his commentaries on the law, Sir William Blackstonedefines the Law of Nature and Natures God:

Law of Nature. This law, being coeval with mankind and dictated by God

Himself, is obligatory upon all. No human laws are of any validity if contrary tothis, as they derive their force and authority from this original.

Revealed Divine Law. In compassion for the imperfections of human reason,

God has mercifully at times discovered and enforced His laws by direct

revelations. These are found in the Holy Scriptures The revealed law is ofgreater authenticity, than the moral system framed by ethical writers, termed the

natural law, because one is the law of nature, as declared to be by God Himself;

the other is only what, by the light of human reason, we imagine to be that law.

Foundation of Human Law. Upon these two foundations, the law of nature andthe law of revelation, depend all human laws; i.e., no human laws should

contradict them.69

Blackstone is one of the two most evoked legal authorities by the Founders.70 Although prior to

Christianity other civilizations had the concept of natural law, it is plain to understand fromBlackstones definitions what he defined as the law of nature and who was natures God.

According to him, the law of nature is found in the Holy Scriptures, which the God of nature

revealed.

According to the Founders, the second phrase names the source of human rights: the

Creator. As Blackstone states, The will of [mans] Maker is called the law of nature. Man isentirely a dependent being, subject to the laws of his Creator, to whose will he must conform.

71

These laws are not merely physical laws, but also moral laws. Otherwise, there would be no

need to mention them within the context of the legal profession.

Having the Creator as the source of rights instead of Parliament is an important contrast;

the colonists had to separate themselves from England at a fundamental level. QuotingBlackstone, Bernard Bailyn states that, to the English, Parliament was the supreme,

irresistible, absolute, uncontrolled authority in whichthe rights of sovereignty, reside and

that in England this sovereignty of the British constitution was lodged in Parliament, theaggregate body of King, Lords, and Commons, whose actions no power on earth can undo. 72

Therefore, Blackstone states that God and His revealed laws set the parameters for all laws that

government (Parliament) may enact, but the power of Parliament, entrusted not to contradict

69Bernard C. Gavit, ed. Blackstones Commentaries on The Law (Washington: Washington Law Book Co.,

1941), 27.70 Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University

Press, 1988), 142.71 Gavit, 26.72 Bailyn, 201.

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Gods laws, is absolute. Parliament was the creator and interpreter, not the subject, of law; thesuperior and master of all other rights and powers within the state.73 The colonists, then, had to

show Parliaments legislation as violating Gods laws in order to have legal and moral grounds

for separation. After all, by nature government [is] necessarily hostile to human liberty andhappiness;it exist[s] only on the tolerance of the people whose needs it serves; and that it could

be, and reasonably should be, dismissedoverthrownif it attempted to exceed its properjurisdiction.74

Once Parliament violated the laws of God, the colonists were free to rebel againstit.

In John Lockes Second Treatise of Government, the colonists found the philosophical

justification for natural rights and the moral rationale for declaring independence from the

British government75

(emphasis in original). The importance of this discourse is that theDeclaration of Independence bases the source of natural or inalienable rights on the Creatoran

entity beyond the human realmand withdraws it from Parliament, a political body within the

human realm. It is obvious that in their minds there was no contradiction in mentioning God in a

political document.

The Continental Congress also bore witness to the inclusion of the Almighty God, Jesus

Christ, Holy Ghost, and Christian, among other religious terms and events, in its record. For

example, on September 6, 1774, Congress resolved that the Rev. Mr. Duch should open the

assembly on the following day with prayer.76

Rev. Duch was an Episcopalian minister, thatfact bringing some contention among the Quakers, Anabaptists, Presbyterians, and

Congregationalists because [they] were so divided in religious sentiments [and] could not

join in the same act of worship.77

However, John Adams considered him a zealous friend ofLiberty and his country.78 His letter to his wife Abigail gives an extraordinary account of the

reading and prayer:

Mr. Samuel Adams arose and said he was not bigot, and could hear a prayer from

a gentleman of piety and virtue, who was at the same time a friend to his

country. The motion [to have Rev. Duch open Congress] was seconded andpassed in the affirmative. Accordingly, next morning he appeared with his clerkand in his pontivicals, and read several prayers in the established form; and then

readthe thirty-fifth Psalm. You must remember this was the next morning after

we heard the horrible rumor of the cannonade of Boston. I never saw a greatereffect upon an audience. It seemed as if Heaven had ordained that Psalm to be

read on that morning. After this, Mr. Duch, unexpected to everybody, struck out

into an extemporary prayer, which filled the bosom of every man present.79

To Silas Deane and John Adams, the reading of Psalms 35 was providential and extremelyappropriate for the opening to the Congress.

73Ibid.

74Ibid., 47.75 Kahl, 11.76 Journals of the Continental Congress, 1774-1789, Volume I: September 5, 1774 to October 26, 1774,

[database on-line]; available from http://lcweb2.loc.gov/ammem/amlaw/lwjclink.html. Accessed 11 October 2001.77 Charles Francis Adams, Familiar Letters of John Adams and His Wife Abigail Adams, During the

Revolution (New York: Hurd and Houghton, 1876), 37.78Ibid., 38.79Ibid., 37.

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On March 16, 1776, the Congress called for a day of fasting and humiliation in light ofthe impending war:

The Congress [d]esirous, at the same time, to have people of all ranks and

degrees duly impressed with a solemn sense of God's superintending providence,

and of their duty, devoutly to rely, in all their lawful enterprizes, on his aid and

direction, Do earnestly recommend, that Friday, the Seventeenth day of May next,be observed by the said colonies as a day of humiliation, fasting, and prayer; that

we may, with united hearts, confess and bewail our manifold sins andtransgressions, and, by a sincere repentance and amendment of life, appease his

righteous displeasure, and, through the merits and mediation of Jesus Christ,

obtain his pardon and forgiveness; humbly imploring his assistance to frustratethe cruel purposes of our unnatural enemies; and by inclining their hearts to

justice and benevolence, prevent the further effusion of kindred blood. But if,

continuing deaf to the voice of reason and humanity, and inflexibly bent, on

desolation and war, they constrain us to repel their hostile invasions by openresistance, that it may please theLord of Hosts, the God of Armies, to animate our

officers and soldiers with invincible fortitude, to guard and protect them in theday of battle, and to crown the continental arms, by sea and land, with victory andsuccess: Earnestly beseeching him to bless our civil rulers, and the representatives

of the people, in their several assemblies and conventions; to preserve and

strengthen their union, to inspire them with an ardent, disinterested love of theircountry; to give wisdom and stability to their counsels; and direct them to the

most efficacious measures for establishing the rights of America on the most

honourable and permanent basis--That he would be graciously pleased to bless all

his people in these colonies with health and plenty, and grant that a spirit ofincorruptible patriotism, and of pure undefiled religion, may universally prevail;and this continent be speedily restored to the blessings of peace and liberty, and

enabled to transmit them inviolate to the latest posterity. And it is recommendedto Christians of all denominations, to assemble for public worship, and abstain

from servile labour on the said day80

(emphasis added).

On Saturday, November 1, 1777, the record shows the use of the words Almighty God, Jesus

Christ, and Holy Spirit in a declaration setting aside a day of thanksgiving:

Forasmuch as it is the indispensable duty of all men to adore the superintending

providence of Almighty God; to acknowledge with gratitude their obligation tohim for benefits received, and to implore such farther blessings as they stand in

need of; and it having pleased him in his abundant mercy not only to continue to

us the innumerable bounties of his common providence, but also to smile upon us

in the prosecution of a just and necessary war, for the defence and establishmentof our unalienable rights and liberties; particularly in that he hath been pleased in

so great a measure to prosper the means used for the support of our troops and to

crown our arms with most signal success: It is therefore recommended to thelegislative or executive powers of these United States, to set apart Thursday, the

80 Journals of the Continental Congress, 1774-1789, Volume IV: January 1, 1776 to June 4, 1776, 209,

[database on-line]; available from http://lcweb2.loc.gov/ammem/amlaw/lwjclink.html. Accessed 11 October 2001.

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interest of religion as well as an instance of the progress of arts in this country,and being satisfied from the above report, of his care and accuracy in the

execution of the work, they recommend this edition of the Bible to the inhabitants

of the United States, and hereby authorise him to publish this recommendation inthe manner he shall think proper.84

There are numerous documents indicating that neither the Continental Congress nor the Congressof the United States had any problems in including religious terms, seeking guidance from God,

or declaring particular days as religious in nature.

Historical Test for the Religion Clauses of the 1st Amendment

Documents

Transcript of Historical Test for the Religion Clauses of the 1st Amendment